Experts: Gardner likely to pursue venue change

The name John Albert Gardner III has been in the public’s consciousness only a few weeks and is unlikely to fade anytime soon.

As a result, some legal observers wonder whether Gardner can receive a fair trial in San Diego County, where he is accused of raping and killing 17-year-old Chelsea King of Poway.

Gardner, 30, has pleaded not guilty to felony charges in what could become a death-penalty case.

So far, Gardner’s lawyers have not filed documents in Superior Court asking a judge to consider moving the trial to another county, where potential jurors might not have been exposed to extensive media coverage.

Some say it’s only a matter of time.

“I suspect they will,” said Shaun Martin, a professor at the University of San Diego School of Law, who noted the intense public interest in Gardner’s case.

Martin said the typical argument defense attorneys make in favor of a change of venue is that members of the public have made up their minds about the case. Therefore, their client cannot get a fair trial.

These assertions can be difficult to prove, Martin said.

“You can’t just say, ‘Look, there’ve been a lot of newspaper clippings,’ ” he said. “You have to prove that potential jurors have already come to an opinion about the defendant’s guilt and might not be able to leave that opinion behind once they become jurors.”

The common argument against moving a trial out of the area where the crime occurred is that in a county the size of San Diego — with a population of more than 3 million — it is possible to find 12 men and women who can be fair and impartial.

“It’s really hard to get a change of venue,” said Donald Levine, a defense attorney who is not involved in the Gardner case. “I’ve only seen it in one or two cases in 30 years.”

Gardner, a registered sex offender from Lake Elsinore, was arrested Feb. 28, three days after Chelsea King disappeared while going for a run at Rancho Bernardo Community Park. Chelsea’s body was found March 2.

The next day, dozens of reporters from local and national media outlets showed up to the courthouse in downtown San Diego for Gardner’s arraignment. Court staffers set up a viewing area in a separate courtroom to handle the overflow.

The media spotlight intensified when Escondido police said Gardner was a focus of the investigation into the death of Amber Dubois, 14, who had been missing for 13 months. Her remains were found March 6 north of Pala.

After that, Mel Epley and Michael Popkins — both deputy public defenders — asked for a gag order barring the attorneys in the case and their agents from commenting publicly on Gardner.

Judge David Danielsen signed the order.

Experts said defense lawyers often argue that changing the venue is necessary because media reports have prejudiced the jury pool by disseminating information that might not become part of the trial.

Martin said defense lawyers typically file such motions after a preliminary hearing, which is the first opportunity for prosecutors to present evidence they believe supports the charges.